Paparazzi and Public Property

The Notion of "Public Property" Muddies People's Basic Rights

Tibor Machan is professor of philosophy at Auburn University, Alabama (on leave), distinguished fellow and professor at the Leatherby Center of Chapman University, California, and research fellow at the Hoover Institution, Stanford, California. He is author of, among other books, Private Rights and Public Illusions (1995).

In the wake of the crash that killed Princess Diana, many folks were hell-bent on convicting paparazzi anywhere they could be found. Hollywood celebrities flocked to television talk shows and even news programs to accuse tabloid publishers of complicity in various crimes that they say come about because of the sleazy journalism the tabloids practice.

As this is written, it appears the paparazzi who chased the car in which Princess Diana met her demise may have helped cause the crash. There are also the matters of the driver’s apparent inebriation and the passengers’ failure to stop the speeding; the paparazzi could have been dealt with differently.

Deeper questions remain. Do journalists have a right to gather the news by engaging in the kind of conduct they allegedly exhibited on the night of Diana’s death? Why aren’t outspoken celebrities vigilant in the defense of individual rights apart from their own privacy concerns? Nevertheless, the issue of the apparent clash between press freedom and privacy is important. How should the press’s freedom be conceived of, especially in public places?

The press, of course, has no right to invade anyone’s private property to obtain stories or pictures. But what about public property? Journalists and photographers are able to operate on vast public domains of streets, parks, beaches, highways, and waterways. Because public areas exist, the press—including the paparazzi—are able to operate in intrusive ways largely with impunity.

If a paparazzo wants to invade someone’s home or business to take pictures, that can be prevented, or at least discouraged, by the threat of prosecution for trespass. More directly, a security guard can expel a trespasser. But if he hangs out on the closest “public” street corner waiting for a prominent person to emerge from his home, it would be problematic to chase the photographer because public property supposedly belongs to us all.

Why “Public” Property?

The first point to be made then is that there is no reason for the existence of so many large public, meaning tax-funded, areas. In a free society, public spheres would be confined to where government houses its legitimate activities: military bases, courthouses, and so on. Even roads do not have to be public. They could well be the property of various transport, recreation, or other firms and would be better off for it. (Professor Walter Block explained this nicely in his essay on private roads in T. R. Machan, ed., The Libertarian Reader [Rowman & Littlefield, 1982].)

As long as public domains are so pervasive, albeit unnecessarily so, some way of dealing with the clash of claims to their use must be found. In the United States and many Western countries, it is widely thought that when people occupy a public space, they can freely engage in any kind of conduct that does not involve direct personal injury to others, such as assault, rape, battery, or murder. On a few occasions that doctrine has been challenged, for example, when panhandlers or abortion protesters have made it nearly impossible for others to go about their business. Huge legal battles have ensued. (In one celebrated case, the American Civil Liberties Union sued on behalf of a homeless man of highly dubious personal hygiene, who sat in a municipal library glaring at other people. The library officials expelled him, but the man and the ACLU prevailed in court.)

Thus the legal right of those who use the street for transportation may clash with the legal right of those who use it for demonstrations or protests. It has been difficult to figure out which legal rights deserve greater protection. The institution of “public property” creates this problem. It generally doesn’t exist on private property, where the owner sets the rules. (An exception is shopping malls, where some courts have said that owners cannot prohibit the distribution of leaflets.)

The same problem faces relatively free societies regarding the paparazzi and other news gatherers. Indeed, at times members of the press are convinced that their goal of gathering information justifies behavior that is quite aggressive and invasive, not to mention cruel and insensitive (as when they chase relatives of the victims of a plane crash to ask, “How do you feel about losing your children in this tragic accident?”).

The Right to Know

The issue is often misunderstood when people think in terms of the “public’s right to know.” There is no such basic right at all—it’s a myth. No one has a right to be informed by others unless they have freely committed themselves to provide such a service. Then and only then does one have a (contractual) right to get the information in question. And the taxpayers, by virtue of their relationship to the government, may be said to have a right to know what the government is up to. On the other hand, if the public had a general right to know, holders and providers of information would, in effect, be the slaves of the public.

We know that if a person, celebrity or not, is doing something newsworthy in his private home, the press has no right to enter the property to investigate. If the public had a “right to know,” this would not be the case. But scouting for news on private property without the owner’s permission is an invasion of privacy and a violation of rights. No alleged “right to know” trumps such genuine basic rights.

Public property, again, muddies these principles. Theoretically, public spaces belong to everyone, so whatever goes on there in some sense is the public’s business. But is that the same as the public’s right to know?

The provisional solution to the clash of uses on public property, say, between the press and celebrities walking down the street, involves something that may not please the paparazzi: the law ought to clearly designate the purpose of public realms and make sure they are devoted primarily to that purpose. For example, if the paparazzi interfere with a celebrity’s appropriate use of public property, for example, driving on a road, it would be (and is now) legally actionable.

The same, of course, would apply to any obstructive demonstration. When the Teamsters used public roads to block transportation to and from UPS centers, or when the Hare Krishna at public airports intrude on passengers going about their business, they are using public areas for objectives unrelated to the purposes for which those areas exist, namely, transportation. Likewise, in parks and on beaches, recreation comes before agitation and other activities. Until these assets are privatized, the only solution to the clash of uses is to consider the purposes served by public areas. These are usually expressed in the semi-democratic procedures of federal, state, county, and city governments. For instance, when a sports arena is built by and for the public (taxpayers), in line with the outcome of a referendum, sports events must be treated as its primary function. Other uses are secondary.

A Responsible Paparazzi

The implication is that if the paparazzi, while on public property, cannot engage in their special activities without obstructing others who are using it for its primary purpose, they are violating rights. Furthermore, if they harm others or contribute to a dangerous situation, they are culpable. A steady prosecution of such conduct could abate some of the adverse, at times disastrous, consequences of the often zealous pursuits for which people use public spheres.

The press in America enjoys a special status among all the professions: it is explicitly, constitutionally protected from government regulation. This is, of course, good as far as it goes; all honest work should be protected from government regulation. But despite that status, people in the news-gathering business should not get the impression that for them everything is permitted. By having nearly unlimited access to public realms, the press already has the benefit of lower costs for its operations. Its raw material, the news that originates in public spaces, can be obtained without having to purchase it, quite unlike any other commercial undertaking. If the paparazzi had anything to do with Princess Diana’s death, perhaps it will draw attention to this distorted legal situation and the dilemmas of so-called public property. The basic rights of the press will be best protected when all individual rights are protected.

THE FREEMAN

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December 2014

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